TN Voucher Legislation: Bill Details and Public Reaction

April 26, 2019

On April 25, 2019, the Tennessee senate passed an amended version of the school voucher bill that the Tennessee house had passed a day eariler.

I could find no article that linked to the actual school voucher legislation passed in the Tennessee house or senate, nor any mention of either bill by its bill number. Too, a search of the terms, “education savings accounts,” “opportunity scholarships,” and “school vouchers” on the Tennessee General Assembly website yielded nothing that appeared to be the school voucher bills just voted on. I also tried looking up the date the legislation was voted on as well as the name of the only co-sponsor of the senate bill who was quoted in the media, state senator Brian Kelsey (R- Germantown).

However, I did eventually find the school voucher legislation voted on in the Tennessee senate on April 25, 2019, SB0795, and the house version, HB0939, as well as a detailing of the complete process undertaken by the Tennessee house and senate as it relates to the school voucher legislation in question. (See the numerous amendments to both house and senate versions of the bill here by clicking the “amendments” tab). Part of the complication is that the original senate bill SB0795 description includes no mention of school choice directly and at best obscurely hints at it:

Education – As introduced, extends, from 10 days to 30 days, the period of time after a local board of education orders a student’s school assignment within which a parent, guardian, or legal representative may apply to the board for a hearing to challenge the reasonableness of the student’s assignment and to request the student’s transfer to another school. – Amends TCA Title 49, Chapter 6.

On April 25, 2019, the Tennessee senate substituted the house version of the school voucher bill for the senate version, which they amended. Below is a summary detailing the entire process (to locate the summary, click here and choose the “summary” tab):

ON APRIL 23, 2019, THE HOUSE ADOPTED AMENDMENTS #2, #11, AND #12 AND PASSED HOUSE BILL 939, AS AMENDED.

AMENDMENT #2 rewrites this bill and enacts the “Tennessee Education Savings Account Act,” which provides for education savings accounts for eligible students, whereby funds will be provided for the student to be educated at a private school that meets the requirements established by the department of education and the state board of education for a Category I, II, or III private school (referred to as a participating school).

An “eligible student” under this bill is a resident of this state who:

(A) Was previously enrolled in and attended a Tennessee public school for the one full school year immediately preceding the school year for which the student receives an education savings account; is eligible for the first time to enroll in a Tennessee school; or received an education savings account in the previous school year;
(B) Is a student in any of the grades K-12;
(C) Is zoned to attend a school in an LEA that had three or more schools identified as priority schools in 2015 and that had three or more schools among the bottom 10 percent of schools as identified by the department in 2017; and
(D) Is a member of a household with an annual income for the previous year that does not exceed twice the federal income eligibility guidelines for free lunch.

Additionally, either the parent of the student, if the student is less than 18 years of age, or the student, if the student is 18 years of age or older, must present one of the following documents for the parent of the minor student or for the student who is at least 18 years of age: a valid Tennessee driver license or photo identification license issued by the department of safety; a valid driver license or photo identification license issued by another state where the issuance requirements are at least as strict as those in this state, as determined by the department; an official birth certificate issued by a United States state, jurisdiction or territory; A U.S. government-issued certified birth certificate; a valid, unexpired United States passport; a U.S. certificate of birth abroad; a report of birth abroad of a citizen of the United States; a certificate of citizenship; a certificate of naturalization; a United States citizen identification card; or valid alien registration documentation or other proof of current immigration registration recognized by the United States department of homeland security that contains the individual’s complete legal name and current alien admission number or alien file number.

In addition to the provision of the above-described documentation, to participate in the program the parent of a minor eligible student, or the eligible student, as applicable, must:

(1) Ensure the provision of an education for the participating student that satisfies the compulsory school attendance requirement of state law through enrollment in a private school that meets the requirements established by the department and state board for a Category I, II, or III private school;
(2) Not enroll the participating student in a public school while participating in the program;
(3) Release the LEA in which the participating student resides from all obligations to educate the participating student while participating in the program. Participation in the program has the same effect as a parental refusal to consent to the receipt of services under the Individuals with Disabilities Education Act (IDEA); and
(4) Only use the funds deposited in a participating student’s ESA for education-related expenses. This amendment details the allowable expenditures, such as tuition, textbooks, certain fees for transportation, computer hardware, and school uniforms. Authorized expenditures also include fees for the management of the ESA by a private or non-profit financial management organization, as approved by the department. The fees must not exceed 2 percent of the funds deposited in a participating student’s ESA in a fiscal year.

This amendment specifies that it does not prohibit a parent or third party from paying the costs of educational programs and services for a participating student that are not covered by the funds in an ESA.

Generally under this amendment, a participating student may participate in the program until: the participating student enrolls in a public school; ceases to be a resident of the LEA in which the student resided when the student began participating in the program; graduates or withdraws from high school; or reaches 22 years of age between the commencement of the school year and the conclusion of the school year, whichever occurs first, unless the student is suspended or terminated from participating in the program. A participating student may return to the student’s LEA at any time after enrolling in the program. Upon a participating student’s return to the student’s LEA, the student’s ESA will be closed and any remaining funds must be returned to the state treasurer to be placed in the basic education program account of the education trust fund. Similarly, if a participating student ceases to be a resident of the LEA in which the student resided when the student began participating in the program, then the student’s ESA will be closed and any remaining funds must be returned to the state treasurer to be placed in the basic education program account.

Any funds remaining in a participating student’s ESA upon graduation from high school or exiting the program by reaching 22 years of age may be used by the student when the student becomes a legacy student to attend or take courses from an eligible postsecondary institution, with qualifying expenses subject to the conditions of this amendment described above in (4). A participating student’s ESA will be closed, and any remaining funds will be returned to the state treasurer to be placed in the basic education program account, after the first of the following events: upon a legacy student’s graduation from an eligible postsecondary institution; after four consecutive years elapse immediately after a legacy student enrolls in an eligible postsecondary institution; after a participating student or legacy student exits the program and is not enrolled in an eligible postsecondary institution; or after a participating or legacy student reaches 22 years of age and is not enrolled in an eligible postsecondary institution.

A student who is eligible for both the program created under this amendment and an individualized education account under the Individualized Education Act may apply for both programs but must only participate and receive assistance from one program. This amendment also specifies the criteria for a participating student’s eligibility to participate in a sport sanctioned by an association that regulates interscholastic athletics for the first year in which the student attends a participating school.

The program will begin enrolling participating students no later than the 2021-2022 school year. The number of participating students enrolled in the program must not exceed:

(1) For the first school year of operation, 7,500 students;
(2) For the second school year of operation, 15,000 students;
(3) For the third school year of operation, 22,500 students;
(4) For the fourth school year of operation and for each school year thereafter, 30,000 students.

This amendment sets out in detail the process that will be followed when applications are less than or more than maximum allowable amount of students, including provisions for a lottery and the preference in the lottery for certain students.

The maximum annual amount to which a participating student will be entitled under the program must be equal to the amount representing the per pupil state and local funds generated and required through the basic education program (BEP) for the LEA in which the participating student resides.

This amendment establishes a school improvement fund to be administered by the department that, for the first three fiscal years in which the program accepts participating students and subject to appropriation, will disburse an annual grant to each LEA to be used for school improvement for participating students under the program who: were enrolled in and attended a school in the LEA for the one full school year immediately preceding the school year in which the student began participating in the program; and generate BEP funds for the LEA in the applicable fiscal year that will be subtracted from the state BEP funds payable to the LEA.

The annual grant amount will be as follows:

(1) For the first fiscal year in which the program accepts participating students, subject to appropriation, 75 percent of the ESA amount awarded to participating students under the program who meet the above-described requirements;
(2) For the second fiscal year in which the program accepts participating students, subject to appropriation, 50 percent of the ESA amount awarded to participating students under the program who meet the above-described requirements; and
(3) For the third fiscal year in which the program accepts participating students, subject to appropriation, 25 percent of the ESA amount awarded to participating students under the program who meet the above-described requirements.

This amendment provides that the department will also disburse an annual school improvement grant to LEAs that have priority schools as defined by the state’s accountability system, but that do not have participating students in the program as follows:

(1) For the first fiscal year in which the program accepts participating students, subject to appropriation, 25 percent of the ESA amount awarded to participating students under the program who meet the above-described requirements;
(2) For the second fiscal year in which the program accepts participating students, subject to appropriation, 50 percent of the ESA amount awarded to participating students under the program who meet the above-described requirements; and
(3) For the third fiscal year in which the program accepts participating students, subject to appropriation, 75 percent of the ESA amount awarded to participating students under the program who meet the above-described requirements.

This amendment establishes various requirements of the department of education in administering the program, and authorizes the department to deduct 6 percent from the annual ESA award amount to cover the costs of overseeing the funds and administering the program. This amendment also authorizes the department to contract with a nonprofit organization to administer some or all portions of the program.

Under this amendment, as a condition of participating in the program, participating students in grades 3-11 must be annually administered the Tennessee comprehensive assessment program (TCAP) tests for math and English language arts, or successor tests authorized by the state board of education for math and English language arts. For participating students enrolled full-time in a participating school, the participating school shall annually administer the tests required in subdivision (a)(1) to participating students. For participating students 17 years of age or younger who are not enrolled full-time in a participating school, the participating student’s parent must ensure that the participating student is annually administered the tests. A participating student who has reached the age of 18 and who is not enrolled full-time in a participating school must ensure that participating student is annually administered the tests.

This amendment sets out in detail other requirements for the program and the ESA accounts, establishes certain reporting requirements, and specifies that the program is subject to audit by the comptroller. The department may suspend or terminate a participating student from the program, or close a legacy student’s ESA, if the department determines that the participating student’s or legacy student’s parent or the participating student or legacy student has failed to comply with the requirements of this amendment.

This amendment also sets out requirements for participating schools, such as requiring the schools to certify that they will not discriminate against participating students or applicants on the basis of race, color, or national origin; and requirements to conduct criminal background checks on employees. The department may suspend or terminate a participating school’s or provider’s participation in the program if the department determines that the participating school or provider has failed to comply with the requirements of this amendment.

Under this amendment, if a person knowingly uses ESA funds for expenses that do not constitute qualified expenses with the intent to defraud the program, or knowingly misrepresents the nature of the expenses paid with the intent to defraud the program, then the department may refer the matter to the appropriate enforcement authority for criminal prosecution.

This amendment specifies that a participating school or provider will be considered autonomous and not an agent of this state, and provides that a participating school will not be required to alter its creed, practices, admissions policies, or curriculum in order to accept participating students, other than as is necessary to comply with the requirements of the program.

This amendment grants various rulemaking authorities to the state board of education and the department of education, as detailed in this bill, to effectuate various provisions of the program.

This amendment:

(1) Provides that it is the intent of this amendment to provide funding to students who reside in LEAs that have consistently had the lowest performing schools on a historical basis and for the ESA funds to be used to provide educational opportunities to such students that are equal to the educational opportunities of students who reside in LEAs with higher performing schools;
(2) Requires the department to provided, on January 1 following the third fiscal year in which the program enrolls participating students, and every January 1 thereafter, a report to the general assembly. The report must include a list of the LEAs with at least one school among the bottom 5 percent of schools in overall achievement, as determined by the performance standards and other criteria set by the state board, for the most recent year in which the department collected such information. The report must also include a recommendation for legislative action if, based upon the list provided, the group of LEAs whose students are eligible for participation under this amendments provisions described above in (C) is no longer consistent with the intent described in item (1) above; and
(3) Specifies that a local board of education does not have authority to assert a cause of action, or intervene in any cause of action, challenging the legality of this bill as amended.

AMENDMENT #11 reduces the maximum number of students that may participate in the program, as described above in the summary for House Amendment #2, to be 5,000 for the first year; 7,500 for the second year; 10,000 for the third year; 12,500 for the fourth year; and 15,000 for the fifth and subsequent years.

This amendment also adds to the requirement of House Amendment #2 that participating students being annually administered the TCAP tests (or successor tests) for math and English language arts to also require that such students be administered the TCAP tests (or successor tests) for: science in even-numbered years; and social studies in odd-numbered years.

AMENDMENT #12 adds that an education savings account under this amendment is a state or local public benefit for purposes of the present law Eligibility Verification for Entitlements Act.

ON APRIL 25, 2019, THE SENATE SUBSTITUTED HOUSE BILL 939 FOR SENATE BILL 795, ADOPTED AMENDMENTS #5 AND #2, AND PASSED HOUSE BILL 939, AS AMENDED.

AMENDMENT #5 revises various provisions of this bill, as follows:

(1) This amendment revises, in the definition of “eligible student,” the school to which the student must be zoned (as described above in the summary for House Amendment #2 in (C)) to be either:
(A) A school in an LEA, excluding the achievement school district (ASD), with 10 or more schools: identified as priority schools in 2015, as defined by the state’s accountability system; among the bottom 10 percent of schools, as identified by the department in 2017; and identified as priority schools in 2018, as defined by the state’s accountability system pursuant to ? 49-1-602; or
(B) A school in the ASD on the effective date of this bill.

(2) This amendment allows, as an alternative to enrollment in a private school, the student satisfying the compulsory school attendance through a home school operated under either of the following present law provisions: the provisions for home schools that teach K-12, where the parents are associated with and where students are enrolled with a church-related school that are supervised by the church-related school’s director and that administer or offer standardized achievement tests; or the provision for enrollment by the parent-teacher of a home school student in a church-related school with the parent-teacher participating as a teacher in that church-related school.

(3) This amendment adds the following to the list of allowable expenses under this bill: payment for purchase of curriculum, including any supplemental materials or instruments required by the curriculum; and services provided under a contract with a public school, including individual classes or extracurricular programs. This amendment removes “technology fees” from the list of allowable expenses.

(4) This amendment removes the requirement for the parent or student, as applicable, to provide proof of legal presence in this country, and adds a requirement for the parent or student to verify that the student’s household income meets the requirements of this bill by providing documentation showing evidence of income, including, but not limited to, pay stubs, W-2 forms, or income tax returns. Household income must be verified under this amendment when the parent or student, as applicable, submits an application to participate in the program and at least once every three years, according to the schedule and income-verification process developed by the department. This amendment adds that a student’s participation in the program will terminate if the parent or student, as applicable: fails to verify that the participating student’s household income meets the requirements of this bill according to the schedule and income-verification process developed by the department; or verifies, according to the schedule and income-verification process developed by the department, that the participating student’s household income does not meet the requirements of this bill.

(5) This amendment removes this bill’s criteria for a participating student’s eligibility to participate in a sport sanctioned by an association that regulates interscholastic athletics for the first year in which the student attends a participating school.

(6) This amendment requires the department to establish an application process that provides a timeline, before the start of the school year for which an application is being submitted, when a parent of a student, or a student who has reached the age of 18, as applicable, must submit an application to participate in the program. If the application is approved, then the student may participate in the program beginning with the school year identified in the application. If a participating student exits the program, then the student’s parent, or the student, as applicable, may reapply to participate in the program in accordance with the application process and timeline established by the department. This amendment also requires the department to establish an income verification process.

(7) This amendment revises the provisions governing the number of participating students to be as follows: the number of participating students that may enroll in the program from any one LEA, as described above in (1)(A) of this amendment summary, or from any one school, as described above in (1)(B) of this bill summary, must not exceed: for the first school year of operation, 5,000 students; and for the second school year of operation and for each school year thereafter, 7,500 students. Under this amendment, the maximum number of students that may participate in the program is 15,000 students.

(8) This amendment revises the process that will be followed when applications are less than or more than maximum allowable amount of students to make the provisions applicable to situations where applications do or do not exceed 75 percent of the maximum number of students that may participate in the program.

(9) This amendment specifies that the maximum annual amount to which a participating student is entitled under this bill must not exceed the average state BEP allocation per pupil combined with the average required local match per pupil.

(10) This amendment revises the provisions governing the amount and method of awarding a school improvement grant to an LEA for the first three fiscal years in which the program accepts participating students, as described above in the summary for House Amendment #2, which provides for a different percentage depending on the fiscal year of the program. This amendment instead provides that the grant will be in an amount equal to the ESA amount and revises the provision for grants to LEAs that have priority schools but no participating students so that after the first three fiscal years in which the program accepts participating students the department will disburse any appropriations to the fund as school improvement grants for programs to support priority schools.

(11) This amendment removes the requirements added by House Amendment #11 regarding TCAP tests for science and social studies.

(12) This amendment removes the provision whereby, if a person knowingly uses ESA funds for non-allowable expenses, the department may refer the matter to the appropriate enforcement authority for criminal prosecution.

(13) Replaces the requirement for an annual report from the department to the general assembly that includes a list of the LEAs with at least one school among the bottom 5 percent of schools in overall achievement for the most recent year in which the department collected such a recommendation for legislative action if, based upon the list provided, the group of LEAs whose students are eligible for participation is no longer consistent with the intent of this legislation. This amendment instead requires the office of research and education accountability (OREA), in the office of the comptroller of the treasury, to provide a report to the general assembly to assist the general assembly in evaluating the efficacy of the program. The report must include, in compliance with all state and federal student privacy laws:
(A) The information contained in the department’s annual report prepared pursuant to this bill (includes number of participating students; assessment information; graduation outcomes; and results of a parental satisfaction survey);
(B) Academic performance indicators for participating students in the program;
(C) Audit reports prepared by the comptroller;
(D) A list of the LEAs that meet the requirements described in (1)(A) and (B) of this amendment summary for the most recent year in which the department collected such information; and
(E) Recommendations for legislative action if, based upon the list provided pursuant to (D), the LEAs with students who are eligible to participate in the program is no longer consistent with the intent of this legislation.

(14) This amendment removes this bill’s provision that a local board does not have authority to assert a cause of action, or intervene in any cause of action, challenging the legality of this bill.

(15) This amendment removes the provision added by House Amendment #12, which specifies that an ESA is a state or local public benefit for purposes of the Eligibility Verification for Entitlements Act.

AMENDMENT #2 corrects a typographical error, makes technical clarifications, and makes the following substantive changes and additions to this bill:

(1) This amendment specifies that the amount that a participating student receives under the program must not exceed “the combined statewide average of required state and local BEP allocations per pupil” instead of “the average state BEP allocation per pupil combined with the average required local match per pupil”. This amendment adds a requirement that the department of education promulgate rules to annually calculate and determine the combined statewide average of required state and local BEP allocations per pupil;
(2) This amendment requires that the department’s annual report concerning the program include “participating student performance on annual assessments required by this bill, aggregated by LEA and statewide” instead of “aggregate participating student performance on annual assessments required by this bill”;
(3) This amendment adds a requirement that data from the TCAP tests that are annually administered to participating students in grades three through 11 be used to determine student achievement growth, as represented by the Tennessee Value-Added
Assessment System (TVAAS), for schools that participate in the program. This amendment further requires the department of education to make the TVAAS score of each participating school publicly available on the department’s website; and
(4) This amendment clarifies OREA’s responsibility to report certain data with regard to the achievement school district.

The senate version– which is actually an amended house version– will likley require hashing out in a conference committee of both chambers prior to being presented to the full state assembly for a vote.

Note also that neither version of the bill names specific school systems other than the Achievement School District (ASD) but instead includes participation criteria that could allow one to determine which districts would be immediately affected (and which allows other districts to be included should those districts meet the criteria in the future.

One of the so-sponsors of the senate version of the bill, Brian Kelsey, notes in his American Legislative Exchange Coucil (ALEC) “legislator of the week” page from May 2018 that if he could “wave a magic wand,” he would “like to see more public support for school choice.” (He also states his appreciation for ALEC model legislation.) However, based upon Kelsey’s April 25, 2019, celebration of passage of the school voucher bill on his Facebook page (“Gov. Bill Lee’s ESA legislation passes the Senate 20 to 13! Thousands of children will now have the chance to receive the quality education that they deserve.”), it seems that Kelsey’s “magic wand” has overwhemlingly brought public disappointment and betrayal. Some of the 158 comments to date:

“You claimed during the election that you were done pushing vouchers because “you listened to your constituents and there isn’t parental support for them”. There still isn’t and you voted for this bill anyway. You lied to us.”

“After hearing about the budget lines to “buy votes” and promise to opt out certain counties (in order to gain their reps vote), I am VERY disappointed. If it’s such a good idea, why would counties want to be excluded?????”

“Yes, applaud your abandonment of children and teachers. Congratulations on ignoring root cause and removing all doubt as to whether you were bought and paid for as a politician. Thank you so much for taking the time to actually research the issue you just voted on. I am thrilled that you understand how deeply this has the potential to effect children and families. 7k will not touch most private schools. Loads of them have zero oversight or testing…testing that my child made himself physically ill over because the government, that you will be giving these schools money from, requires these tests….but not the schools we will now help fund. My list goes on. So…slow clap for your ignorance.”

“I feel so insulted at this post.”

“I am not a teacher, but I am a parent. By passing this bill you have not only failed to listen to your constituents, but you failed the children you were meant to help. Your actions will be remembered at election time. Until then I want to thank the educators who fought for our kids, and who will continue to do an amazing job with the meager resources you are given.”

“I’m a retired teacher who dedicated my life to teaching ALL children. This is insulting to all of public educators who have worked endless hours to provide a quality education to ALL children.”

“They would have a quality education if the schools were fully funded and teachers supported to do their best job.”

“No they won’t! This ONLY benefits the ones that can actually pay the rest of the tuition, the uniforms, provide transportation, and pay for extra curricular activities. That’s even if the private school actually accepts them!”

“I am not a Shelby County Resident, but I am a teacher? Have you examined the research of why public schools are not doing well? Do you have any research that shows this legislation will be successful. During my time advancing my degree, I researched and here is overwhelming evidence that students do no better with “school choice” in other states. Some are much worse after the implementation. Poor children will still have no way to afford the already existing quality private education programs that exist in Nashville and Memphis. For profit schools will come in and set up shop claiming that they can help those children only to take their money without any improvement. Think about how our private prisons work. This is what this legislation has the ability to create for our children. It is very sad that our representatives ignore the research and those they represent in order to promote an agenda….one that I’m sure is lining pockets of dirty politicians. My suggestion to improve education…. let those who understand the classroom have a say in decision making, not just those of you sitting in Nashville who obviously think you know better. Help us promote family involvement in schools. Research shows that parents who care have children who do. And lastly, stop the practice of excessive testing. Yes, we need to test, but when the testing is so frequent that teachers are unable to provide quality and meaningful teaching in a time period that students can actually learn the material, it becomes excessive. And stop expecting us to have kids who come in at different levels all be able to perform the same on a test. All children grow differently.”

“How uninformed do you have to be to believe this?”

“Dang. It’s baffling how so many politicians are pretending this is good for the students when thousands of teachers (who actually work in the school system) are shouting about how it will NOT help but in fact hurt our schools and children. Why won’t anyone listen?!”

“So you’re taking funding away from schools that are having a difficult time instead of putting more funding into them to help fix the problem. Nice.”

“How about, I don’t know, fully funding public schools and giving them a chance first?!?!”

“Why don’t we fix the public schools and make the public schools better and a place where kids can receive a quality education?”

“If this bill is such a good idea, why are so many voting for it ONLY if their districts are exempted from it?”

“You know..if you read the comments and see much on social media you would see that the majority of Tennesseans DON’T want this. Yet, you voted for it anyway. Aren’t you supposed to represent ALL of your constituents? Or are the kickbacks you’ll receive more important. Never mind, I already know the answer to that.”

“Tens of thousands of students will be left behind because their education is undermined and underfunded because of this initiative. You’ve played a direct part in creating a caste system in Tennessee education.”

There are many, many more FB comments to Kelsey’s school voucher allegiance. Very few support Kelsey’s pro-voucher stance. If Kelsey reads these comments, he cannot possibly believe that he has public support for his ALEC preference.

If only his constituents would behave ALECky and just fall into line already….